“Twenty
years ago, not quite one-third of [Texas's] jail
population was awaiting trial. Now the number is
three-fourths. Liberty is precious to Americans, and any
deprivation must be scrutinized. To protect public safety and
ensure that those accused of a crime will appear at trial,
persons charged with breaking the law may be detained before
their guilt or innocence can be adjudicated, but that
detention must not extend beyond its justifications. Many who
are arrested cannot afford a bail bond and remain in jail
awaiting a hearing. Though presumed innocent, they lose their
jobs and families, and are more likely to re-offend. And if
all this weren't bad enough, taxpayers must shoulder the
cost-a staggering $1 billion per year.” The Honorable
Nathan L. Hecht, Chief Justice of the Texas Supreme Court,
Remarks Delivered to the 85th Texas Legislature,
Feb. 1, 2017.

This
case requires the court to decide the constitutionality of a
bail system that detains 40 percent of all those arrested
only on misdemeanor charges, many of whom are indigent and
cannot pay the amount needed for release on secured money
bail. These indigent arrestees are otherwise eligible for
pretrial release, yet they are detained for days or weeks
until their cases are resolved, creating the problems that
Chief Justice Hecht identified. The question addressed in
this Memorandum and Opinion is narrow: whether the plaintiffs
have met their burden of showing a likelihood of success on
the merits of their claims and the other factors necessary
for a preliminary injunction against Harris County's
policies and practices of imposing secured money bail on
indigent misdemeanor defendants. Maranda Lynn ODonnell,
Robert Ryan Ford, and Loetha McGruder sued while detained in
the Harris County Jail on misdemeanor charges. They allege
that they were detained because they were too poor to pay the
amount needed for release on the secured money bail imposed
by the County's policies and practices. (Docket Entry
Nos. 3, 41, 54). They ask this court to certify a Rule
23(b)(2) class and preliminarily enjoin Harris County, the
Harris County Sheriff, and-to the extent they are State
enforcement officers or County policymakers-the Harris County
Criminal Court at Law Judges, from maintaining a
“wealth-based post-arrest detention scheme.”
(Docket Entry No. 143 at 2).

This
case is difficult and complex. The Harris County Jail is the
third largest jail in the United States. Pls. Ex. 12(aa) at
1. Although misdemeanor arrestees awaiting trial make up
about 5.5 percent of the Harris County Jail population on any
given day, see id. at 13, about 50, 000 people are
arrested in Harris County on Class A and Class B misdemeanor
charges each year. Pls. Ex. 10(c), 2015 Pretrial Services
Annual Report at 8.[1] The arrests are made by a number of
law-enforcement agencies, including the Houston Police
Department and the police forces of smaller municipalities,
the Texas Department of Public Safety, and the Harris County
Sheriff's Office. Id. Harris County's bail
system is regulated by State law, local municipal codes,
informal rules, unwritten customary practices, and the
actions of judges in particular cases. The legal issues
implicate intertwined Supreme Court and Fifth Circuit
precedents on the level of judicial scrutiny in equal
protection and due process cases and on the tailoring of
sufficient means to legitimate ends.

Bail
has a longstanding presence in the Anglo-American common law
tradition. Despite this pedigree, the modern bail-bond
industry and the mass incarceration on which it thrives
present important questions that must be examined against
current law and recent developments. Extrajudicial reforms
have caused a sea change in American bail practices within
the last few years. Harris County is also in the midst of
commendable and important efforts to reform its bail system
for misdemeanor arrests. The reform effort follows similar
work in other cities and counties around the country. This
work is informed by recent empirical data about the effects
of secured money bail on a misdemeanor defendant's likely
appearance at hearings and other law-abiding conduct before
trial, as well as the harmful effects on the defendant's
life.

The
plaintiffs contend that certainly before, and even with, the
implemented reforms, Harris County's bail system for
misdemeanor arrests will continue to violate the
Constitution. This case is one of many similar cases recently
filed around the country challenging long-established bail
practices. Most have settled because the parties have agreed
to significant reform. This case is one of the first,
although not the only one, that requires a court to examine
in detail the constitutionality of a specific bail system for
misdemeanor arrestees. This case is also one of the most
thoroughly and skillfully presented by able counsel on all
sides, giving the court the best information available to
decide these difficult issues.

One
other complication is worth noting at the outset. Since this
case was filed, the 2016 election replaced the Harris County
Sheriff and the presiding County Judge of Criminal Court at
Law No. 16. (Docket Entry Nos. 158, 168). The new Sheriff and
County Judge have taken positions adverse to their
codefendants, although each continues to oppose certain
aspects of the plaintiffs' request for preliminary
injunctive relief.[2] Nonparty County officials, including the
newly elected Harris County District Attorney and one of the
Harris County Commissioners, have filed amicus briefs
supporting the plaintiffs. (Docket Entry Nos. 206, 272).
Harris County's Chief Public Defender has filed a
declaration supporting the defendants. Def. Ex. 23. The lines
of affinity and adversity between the defendants and their
nonparty County colleagues are not always clear.

Even
with the factual and legal complexities, at the heart of this
case are two straightforward questions: Can a jurisdiction
impose secured money bail on misdemeanor arrestees who cannot
pay it, who would otherwise be released, effectively ordering
their pretrial detention? If so, what do due process and
equal protection require for that to be lawful? Based on the
extensive record and briefing, the fact and expert witness
testimony, the arguments of able counsel, and the applicable
legal standards, the answers are that, under federal and
state law, secured money bail may serve to detain indigent
misdemeanor arrestees only in the narrowest of cases, and
only when, in those cases, due process safeguards the rights
of the indigent accused.

Because
Harris County does not currently supply those safeguards or
protect those rights, the court will grant the
plaintiffs' motion for preliminary injunctive relief. The
reasons and the precise, limited relief granted are set out
in detail below.

More
specifically, the court finds that:

• Harris County has a consistent and systematic policy
and practice of imposing secured money bail as de facto
orders of pretrial detention in misdemeanor cases.

• These de facto detention orders effectively operate
only against the indigent, who would be released if they
could pay at least a bondsman's premium, but who cannot.
Those who can pay are released, even if they present similar
risks of nonappearance or of new arrests.

• These de facto detention orders are not accompanied by
the protections federal due process requires for pretrial
detention orders.

• Harris County has an inadequate basis to conclude that
releasing misdemeanor defendants on secured financial
conditions is more effective to assure a defendant's
appearance or law-abiding behavior before trial than release
on unsecured or nonfinancial conditions, or that secured
financial conditions of release are reasonably necessary to
assure a defendant's appearance or to deter new criminal
activity before trial.

• Harris County's policy and practice violates the
Equal Protection and Due Process Clauses of the United States
Constitution.

The
court accordingly orders that:

• Harris County and its policymakers-the County Judges
in their legislative and rulemaking capacity and the Harris
County Sheriff in his law-enforcement capacity-are enjoined
from detaining misdemeanor defendants who are otherwise
eligible for release but cannot pay a secured financial
condition of release.

• Harris County Pretrial Services must verify a
misdemeanor arrestee's inability to pay bail on a secured
basis by affidavit.

• The Harris County Sheriff must release on unsecured
bail those misdemeanor defendants whose inability to pay is
shown by affidavit, who would be released on secured bail if
they could pay, and who have not been released after a
probable cause hearing held within 24 hours after arrest.

The
court does not order: relief in cases involving
felony charges or a mix of misdemeanor and felony charges;
the elimination of secured money bail; changes to Texas State
law; changes to the written Harris County Criminal Courts at
Law Rules of Court; modification of prior federal court
orders, including the consent decree in Roberson v.
Richardson; or a right to “affordable bail”
under the Eighth Amendment. Instead, the relief ordered is
consistent with Texas state and Harris County law as written,
is required by the Equal Protection and Due Process Clauses,
and is justified by the plaintiffs' evidence. The relief
is narrow so as not to interfere with the improvements the
County is working to implement by July 1, 2017.

The
reasons for these rulings are set out in the detailed
findings and conclusions below.

I.
Findings of Fact

A.
Procedural Background

Ms.
ODonnell filed suit while she was in custody in the Harris
County Jail on May 19, 2016. (Docket Entry No. 3). Ms.
McGruder and Mr. Ford filed suit while they were in custody
on May 21, 2016. Civil No. 16-1436. The court consolidated
the actions in August 2016. (Docket Entry No. 41). The
plaintiffs filed an amended complaint on September 1, 2016.
(Docket Entry No. 54). After extensive briefing and two
lengthy hearings on August 18 and November 28, 2016, the
court issued a Memorandum and Opinion on the defendants'
motions to dismiss. (Docket Entry No. 125); ODonnell v.
Harris Cty., Tex., - F.Supp.3d -, 2016 WL 7337549 (S.D.
Tex. Dec. 16, 2016). The court dismissed the claims against
the Harris County Sheriff and the sixteen Harris County
Criminal Court at Law Judges in their personal capacities.
The court denied the motions to dismiss the claims against
the County, the personal-capacity claims against five Harris
County Hearing Officers, and the official-capacity claims
against the Sheriff and the County Judges. (Id.).
The court reset the preliminary injunction hearing scheduled
for December 15, 2016 at the parties' request, to
facilitate settlement negotiations between the parties and
newly elected Harris County officials. (Docket Entry No.
109). The parties did not settle. The court held an eight-day
hearing in March 2017, and the parties filed voluminous
records, lengthy video recordings, and numerous briefs.

The
pending motions are the plaintiffs' motion for class
certification, (Docket Entry No. 146), the defendants'
motion for summary judgment, (Docket Entry Nos. 101, 104,
108), the plaintiffs' motion for a preliminary
injunction, (Docket Entry No. 143), and the defendants'
contingent motion for a stay pending appeal should the court
grant preliminary injunctive relief, (Docket Entry No. 252).
The defendants argue, principally, that there is no
constitutional right to “affordable bail, ” that
Harris County's post-arrest policies are subject to
rational basis review, and that Harris County's policies
are constitutional under any level of judicial scrutiny.
(See Docket Entry Nos. 101, 161, 162, 166, 193, 256,
286). The plaintiffs argue that Harris County's system of
pretrial bail and detention in misdemeanor cases violates the
Equal Protection and Due Process Clauses of the United States
Constitution. (See Docket Entry Nos. 143, 145, 188,
189). They do not believe their claims raise an Eighth
Amendment challenge, but they argue in the alternative that
the County's bail system for misdemeanor arrestees fails
under the Eighth Amendment as well. (Docket Entry No. 92 at
18 n.19; No. 188 at 14 n.13).

This
Memorandum and Opinion addresses the parties' disputes on
summary judgment and the plaintiffs' entitlement to
preliminary injunctive relief. Separate orders address class
certification and the defendants' motion to stay.

B.The
Evidence in the Record

The
motion for a preliminary injunction requires balancing the
expediency demanded by the request for emergency relief with
a full and fair consideration of the voluminous record. The
parties submitted nearly 300 written exhibits, in addition to
2, 300 video recordings of bail-setting hearings conducted
within the last year in Harris County, all admitted without
objection. (Docket Entry Nos. 244, 267). Thirteen witnesses
testified at the eight-day hearing, including four expert
witnesses. The court admitted depositions and declarations
from many other witnesses as well.

The
parties largely agree on the facts of the procedures Harris
County follows after the arrest of misdemeanor defendants.
Both parties' statistical experts used the same data from
the County's administrative sources and largely agreed on
the raw numbers produced by, and the gaps found in, the
Harris County data. The parties' experts disagree about
how to interpret the data. The parties disagree about the
constitutional significance of the evidence about the
County's bail procedures in misdemeanor cases and their
effects.

The
court reviews the factual record under the applicable legal
framework to resolve these disagreements and to enter the
findings of fact and conclusions of law.[3]

1.
The Parties

Maranda
Lynn ODonnell, a 22-year-old single mother, was arrested on
May 18, 2016 at 5:00 p.m. and charged with driving with an
invalid license. Pls. Ex. 7(a). After she was booked into the
Harris County Jail, she was informed that she would be
released promptly if she paid a secured money bail of $2, 500
set according to the County's bail schedule, but that she
would remain in jail if she did not pay either the full bail
amount to the County or a premium to a bail bondsman up
front. Id. Ms. ODonnell and her child struggled to
meet the basic necessities of life. She received benefits
from the federal government's Women, Infants, and
Children program to feed her daughter. She could not afford
housing, so she stayed with a friend. Id. At the
time of her arrest, Ms. ODonnell was working, but it was at a
new job she had held for only seven days. Id. She
had no money to buy her release from detention. Id.
She was otherwise eligible for release.

Harris
County Pretrial Services interviewed Ms. ODonnell at 11:52
p.m. on May 18. Pls. Ex. 8(c)(1), ODonnell Pretrial Services
Report. At 3:00 a.m., on May 19, Pretrial Services completed
a risk-assessment report recommending her release on a
personal bond-that is, an unsecured appearance bond requiring
no up-front payment for release. Id. Ms. ODonnell
appeared before a Hearing Officer at 7:00 a.m., by videolink
from the Harris County Jail. Pls. Ex. 4(c)(1), ODonnell
Docket Sheet. The Sheriff's deputies present ordered her
not to speak. Pls. Ex. 7(a). Without explanation, the Hearing
Officer told her that she did not “qualify” for
release on personal bond and imposed the $2, 500 scheduled
amount as secured bail, meaning that she had to pay the full
bail amount or a bondman's premium to be released. Pls.
Ex. 8(c), ODonnell Hearing Video. When asked if she would
hire her own lawyer or would be seeking help from a
court-appointed lawyer, Ms. ODonnell responded,
“Seeking help.” These were her only words during
her 50-second hearing. Id.

On the
morning of May 20, Ms. ODonnell appeared before a County
Criminal Court at Law Judge. (Docket Entry No. 31, Ex. 1).
She completed an affidavit declaring her lack of assets and
was found indigent for the purpose of appointing counsel.
(Id.). Her bail amount was not changed or set on an
unsecured basis, even though she declared on her affidavit
that she remained in jail. (Id.). That same day, but
after Ms. ODonnell filed this suit, an insurance underwriter
for a commercial bondsman posted her bail amount. Pls. Ex. 11
at *5. This third-party payment looks like an attempt to moot
her claim. See id. Ms. ODonnell was released from
jail after three days in pretrial detention on the charge of
driving with an invalid license. Pls. Ex. 8(c), ODonnell
Docket Sheet.

Robert
Ryan Ford was arrested on May 18, 2016 at 8:00 p.m. He was
charged with shoplifting from a Wal-Mart. Pls. Ex. 7(c). Mr.
Ford could not pay the $5, 000 secured money bail imposed as
the condition for his release from pretrial detention.
Id. This was the amount specified in the bail
schedule. Mr. Ford was interviewed by Pretrial Services at
10:00 a.m. the morning after his arrest, but Pretrial
Services did not complete Mr. Ford's risk assessment
until the next day, May 20, at 2:00 a.m. Pls. Ex. 8(c)(iii),
Ford Pretrial Services Report. The risk-assessment report
recommended “Detain, ” stating that Mr. Ford had
“[s]afety issues that conditions can't
mitigate.” Id. at *16. The form did not
explain these issues nor why some combination of conditions
of release could not address them. Notwithstanding the
recommendation to detain, had Mr. Ford paid the $5, 000
bail-or paid a bondsman a $500 premium[4]-he would have
been promptly released, regardless of “safety
issues.” He could not pay the $5, 000 secured money
bail or the bondsman's premium, so he remained in jail.
Pls. Ex. 7(c). As intended by Pretrial Services, the secured
money bail served as a pretrial detention order because Mr.
Ford was too poor to pay.

Mr.
Ford did not see a Hearing Officer until May 20, 2016 at 4:00
a.m., 32 hours after his arrest. Pls. Ex. 8(c)(iii), Ford
Docket Sheet. His hearing lasted less than 50 seconds. Pls.
Ex. 8(c), Ford Hearing Video. He did not speak except to ask
for a court-appointed lawyer. Id. His bail was
confirmed at $5, 000 on a secured basis. Id.

On May
23, 2016, Mr. Ford appeared before a County Criminal Court at
Law Judge, pleaded guilty, and was sentenced to time served.
Pls. Ex. 8(c)(iii), Ford Docket Sheet. He was released at
12:30 a.m. on May 24, 2016. Id. Mr. Ford was
continuously detained on his misdemeanor charge for over five
days, until the final disposition of his case.

Loetha
Shanta McGruder, a pregnant 22-year-old mother of two, was
arrested on May 19, 2016 at 5:20 p.m. She was charged with
failing to identify herself to a police officer. Pls. Ex.
7(b). Ms. McGruder was indigent. Id. She depended on
federal benefits to care for her older son, who has
Down's Syndrome and other medical needs, and she depended
on child-support payments for her other children.
Id. Ms. McGruder was not working when she was
arrested. She avoided homelessness by living with her
boyfriend. Id. She could not pay the $5, 000 secured
money bail imposed as the condition for her release from
pretrial detention. Id.

Ms.
McGruder was interviewed by Pretrial Services the morning
after her arrest, at 8:40 a.m. Pls. Ex. 8(c)(ii), McGruder
Pretrial Services Report. Pretrial Services completed its
risk-assessment report around 1:00 p.m. with no
recommendation for either release or detention. Id.
Ms. McGruder appeared before a Hearing Officer at 1:00 p.m.
on May 20. Pls. Ex. 8(c)(ii), McGruder Docket Sheet. She did
not speak at her hearing except to discuss her need for a
court-appointed lawyer. Pls. Ex. 8(c)(ii), McGruder Hearing
Video. Her bail was confirmed at $5, 000 on a secured basis.
Id.

After
about 87 hours in jail, Ms. McGruder appeared before a County
Criminal Court at Law Judge. Pls. Ex. 8(c)(ii), McGruder
Docket Sheet. She was ready to enter a guilty plea because
she believed it was the fastest way to be released. Hearing
Tr. 2-1:80-81, 108. Her lawyer convinced her to seek a
personal bond instead. Id. At her first counseled
hearing before a County Judge, Ms. McGruder was granted a
personal bond-an unsecured $5, 000 bond with no up-front
payment required. She was released at 7:30 p.m. the same day.
Pls. Ex. 8(c)(ii), McGruder Docket Sheet. Ms. McGruder spent
four full days in pretrial detention on her misdemeanor
charge of failing to identify herself to a police officer.

The
plaintiffs sued Harris County under 42 U.S.C. § 1983,
alleging that the County's policies have deprived them
and others similarly situated of due process and equal
protection by detaining them before trial on misdemeanor
charges because of their inability to pay a secured money
bail, and without a meaningful or timely inquiry into their
inability to pay. (Docket Entry No. 54). The motions to
dismiss resulted in earlier rulings on the claims against the
various defendants.

• The court denied Harris County's motion to
dismiss. The County may face municipal liability under §
1983 for the law-enforcement policies of its Sheriff, to the
extent the Sheriff knowingly enforces invalid detention
orders, and for the legislative and administrative policies
of the County Judges to the extent those policies are not
directly mandated by Texas law. ODonnell, 2016 WL
7337549 at *22-31.

• The court dismissed the plaintiffs'
personal-capacity claim against the Harris County Sheriff but
denied the motion to dismiss the official-capacity claim.
Id. at *32. To the extent the Sheriff enforces
facially valid but unconstitutional detention orders, the
Sheriff may be liable for prospective relief under Ex
parte Young, 209 U.S. 123 (1908). Id.

• The court dismissed personal-capacity claims against
the sixteen Harris County Criminal Court at Law Judges, but
denied the motion to dismiss the official-capacity claims
against them. ODonnell, 2016 WL 7337549 at *27-28.
To the extent the County Judges administratively enforce
facially constitutional Texas laws, such as the Texas Code of
Criminal Procedure, in an unconstitutional manner, the County
Judges may be liable for prospective relief. Id. at
*28, 36-37.

• The court granted the motion to dismiss the
official-capacity claims against five Harris County Hearing
Officers. Id. at *34-35. They remain in the suit in
their personal capacities for declaratory relief only.
Id.

2.
The Fact Witnesses

The
fact witnesses testified about the post-arrest process for
misdemeanor defendants in Harris County, as well as the
reforms to the bail system the County expects to implement by
July 1, 2017. The fact witnesses and their testimony are
summarized below.

• Assistant District Attorney JoAnne Musick. Ms. Musick
was appointed the Sex Crime Unit Chief at the Harris County
District Attorney's Office in January 2017. She has
practiced criminal defense privately for over thirteen years
and has served as the vice-chair of the Criminal Law &
Procedure Committee of the Houston Bar Association and as a
board member of the Texas Criminal Defense Lawyers
Association. Ms. Musick testified about her extensive
experience with Harris County pretrial processes, both as a
criminal defense lawyer and as an Assistant District
Attorney. Ms. Musick filed a declaration stating her
observation that Harris County consistently detains
misdemeanor arrestees, who are otherwise eligible to be
released, because they cannot pay a secured financial
condition of release. As a consequence, many indigent
misdemeanor arrestees plead guilty at their first appearance
as the only way to be released from pretrial detention
without waiting days or weeks for another hearing. Pls. Ex.
7(g) at 4-5.

• Sheriff Ed Gonzalez. Sheriff Gonzalez was elected
Harris County Sheriff in November 2016 and assumed office in
January 2017. He served eighteen years with the Houston
Police Department and was a Houston City Council member for
three terms before his election as Sheriff. Sheriff Gonzalez
testified about his experience with the post-arrest process
in Harris County. Sheriff Gonzalez also filed a declaration
stating his observation that Harris County consistently
detains misdemeanor arrestees, who are otherwise eligible to
be released, because they are too poor to pay a secured
financial condition of release. Pls. Ex. 7(r) at 1-2.

• Major Patrick Dougherty. Major Dougherty was appointed
as a major with the Harris County Sheriff's Office in
January 2017 after serving thirty-five years with the Houston
Police Department. Major Dougherty testified about his
experiences with the post-arrest processes in the City of
Houston and in Harris County. Major Dougherty reviewed the
technology limits and overcrowded conditions in the Harris
County Jail that complicate the timely transfer and
presentment of misdemeanor arrestees.

• Director of Pretrial Services Kelvin Banks. Mr. Banks
began work as the Director of Pretrial Services for Harris
County in October 2016. He served previously as the Director
of Pretrial Services for the Third Circuit Court in Wayne
County, Michigan, primarily overseeing pretrial services for
the City of Detroit. Mr. Banks testified about the
County's current Pretrial Services program, the planned
changes to Pretrial Services's risk-assessment tool, and
other changes impacting the use of secured money bail in
misdemeanor cases. These changes are expected to be
implemented by July 1, 2017.

• Chief Hearing Officer Blanca Villagomez. Judge
Villagomez has been a Harris County Hearing Officer since the
position was created in 1993. She testified about her own and
others' practices as Hearing Officers.

• Hearing Officer Eric Hagstette. Judge Hagstette has
been a Harris County Hearing Officer for over eleven years.
He was a Harris County Assistant District Attorney for ten
years and a criminal defense attorney for ten years. Judge
Hagstette testified about his practices as a Hearing Officer
and his impressions of the pretrial process from his time as
a practicing criminal lawyer.

• County Judge Darrell Jordan. Judge Jordan was elected
to be the presiding judge of County Criminal Court at Law No.
16 in November 2016. He assumed office in January 2017. Judge
Jordan previously practiced as a criminal defense attorney
for eight years. Judge Jordan testified about his practices
as a County Judge and about his past experiences as a lawyer
defending misdemeanor arrestees in Harris County.

• County Judge Paula Goodhart. Judge Goodhart was
appointed to be the presiding judge of County Criminal Court
at Law No. 1 in 2010. She was an Assistant District Attorney
for Harris County for fourteen years and a criminal defense
attorney for three years. Judge Goodhart testified about her
practices as a County Judge and about her past experiences
practicing in the Harris County Criminal Courts at Law.

• County Judge Margaret Harris. The defendants offered
the testimony of Judge Harris, the presiding judge of County
Criminal Court at Law No. 5 since 2003. The parties
stipulated that Judge Harris's testimony would be
consistent in material respects with Judge Goodhart's
testimony. Hearing Tr. 5:152.

• Dr. Marie VanNostrand. Dr. VanNostrand is a project
manager for Luminosity, a consulting firm that advises
pretrial services programs. Dr. VanNostrand is a former
probation and parole officer and pretrial services provider.
She began working as a consultant for pretrial services
agencies in 2003 and through Luminosity has been consulting
with Harris County to reform its pretrial processes and
services since February 2015. Hearing Tr. 6-1:131. Dr.
VanNostrand testified about her statistical studies on
pretrial detention and about the reforms to the Harris County
pretrial process planned for implementation by July 1, 2017.

3.
The Expert Witnesses

The
plaintiffs presented Dr. Stephen Demuth to testify under Rule
702 of the Federal Rules of Evidence on sociology and
criminal pretrial procedure. Dr. Demuth has a doctorate in
sociology with a concentration in chronology and quantitative
methods of research. He is a professor of sociology at
Bowling Green State University in Ohio. He has published
extensively in peer-reviewed journals on pretrial criminal
processes and on the appropriate use of large data sets. Dr.
Demuth testified that he received no compensation for his
consultation and testimony in this case. He has invested at
least 150 hours of work analyzing the data Harris County has
produced since the plaintiffs retained him on February 9,
2017.

The
plaintiffs also presented Judge Truman Morrison to testify
under Rule 702. Judge Morrison is a Senior Judge of the
Superior Court of the District of Columbia. He has served on
that court for over thirty-seven years. After taking senior
status in 2000, Judge Morrison has focused on misdemeanor
cases. Since the late 1980s, he has led reform efforts in his
court to eliminate the use of secured money bail in the D.C.
criminal justice system. He has also worked to educate
judicial officers and others around the country on the
benefits of eliminating money bail and the harms of
continuing to use it in misdemeanor cases.

The
defendants offered the testimony of Dr. Robert Morris as a
Rule 702 witness in criminology. Dr. Morris holds a doctorate
in criminal justice and was a professor of criminology at the
University of Texas in Dallas for nine years. Since August
2016, he has been the cofounder and chief executive officer
of Predicto, a company that uses machine learning to predict
failures in industrial equipment. Dr. Morris testified that
he has worked 45 to 50 hours analyzing data produced by
Harris County since his retention and has invoiced the County
$325 per hour. Hearing Tr. 4-2:156.

The
defendants also offered the testimony of Mr. Bob Wessels as a
Rule 702 witness with specialized knowledge in court
administration and pretrial procedures, particularly in
Harris County. Mr. Wessels was the court manager of the
Harris County Criminal Courts at Law for thirty-five years,
until he retired in 2011. He has received numerous awards and
national recognition for his work on court administration and
is a former president of the National Association of Court
Administrators.

The
court finds that Drs. Demuth and Morris meet the Rule 702
requirements to testify about Harris County's pretrial
arrest data and system and that Judge Morrison and Mr.
Wessels are qualified to testify about court administration.
Specific findings about the reliability, helpfulness, and
credibility of their opinions are set out in detail below.

4.
Overview of the Factual and Legal Issues

The
parties dispute three broad issues: (1) whether Harris County
impermissibly sets secured money bail to serve as de facto
orders of pretrial detention in misdemeanor cases; (2)
whether Harris County provides misdemeanor defendants due
process and equal protection in their bail settings; and (3)
whether planned reforms will sufficiently address the
plaintiffs' allegations of constitutional violations.
Each issue raises complex questions of fact and law.

The
defendants argue that Harris County judicial officers do not
intentionally use secured money bail to detain and are not
recklessly indifferent to that effect of secured money bail.
Instead, the defendants argue, Hearing Officers and County
Judges apply the Texas Code of Criminal Procedure's
requirement to consider five factors-only one of which
relates to a defendant's ability to pay-in setting bail.
See Tex. Code Crim. Pro. art. 17.15. The plaintiffs
respond that the evidence shows Harris County judicial
officers do not in fact give individualized consideration of
the five factors in setting bail in each misdemeanor case,
but instead routinely set secured money bail to conform to a
predetermined schedule, even when it is clear that the effect
will be pretrial detention.

The
parties' disputes extend beyond whether the facts show
rare, occasional, or frequent individual consideration of
bail in particular cases. The parties also dispute whether
imposing secured money bail on an indigent or impecunious
misdemeanor arrestee is a but-for cause or a
proximate cause of pretrial detention if an arrestee
with financial means could pay and secure prompt release. The
defendants argue that virtually no misdemeanor defendant is
detained before trial “solely by” or
“because of” an inability to pay secured money
bail. Instead, the defendant's past criminal history,
prior failures to appear, or other risk factors all
contribute to a judicial officer's decision to impose
secured money bail at a particular amount. Under this view,
the arrestee's criminal history, prior failures to
appear, or other risk factors-not just the bail amount-are
among the reasons for pretrial detention. (See,
e.g., Docket Entry No. 162 at 15-16; No. 164 at 8-9);
Hearing Tr. 1:99-100.

The
plaintiffs counter with a but-for argument. A judicial
officer's decision to set secured money bail means that
the misdemeanor defendant has been found eligible for release
and would be released but for their inability to make the
up-front payment of the secured money bail bond. The
plaintiffs argue that detaining misdemeanor defendants before
trial solely because of their inability to pay violates the
Equal Protection Clause, because defendants with similar
histories and risks but with access to money are able to
purchase pretrial release. The plaintiffs contend that all
rigorous studies of pretrial release in misdemeanor cases
show that release on secured money bail does no more to
mitigate the risk of nonappearance or of new criminal
activity during pretrial release than release on unsecured or
nonfinancial conditions. (See, e.g., Docket Entry
No. 143 at 15-17; No. 188 at 4-7); Hearing Tr. 4-2:15-16.

For the
reasons set out below, the court finds and concludes that the
plaintiffs have the better understanding of the case. A
misdemeanor defendant's criminal background or risk
factors may give the County a persuasive reason to detain
that defendant. But an order imposing secured money bail is
effectively a pretrial preventive detention order only
against those who cannot afford to pay. It is not a detention
order as to defendants who can pay, even if they present a
similar risk of failing to appear or of committing new
offenses before trial as those who cannot pay. And the
reliable record evidence shows that release on secured money
bail does not mitigate those risks for misdemeanor defendants
better than release on unsecured or nonfinancial conditions,
in Harris County or elsewhere. The issue is not a right to
“affordable bail, ” as the defendants insist, but
a violation of the Equal Protection and Due Process Clauses.

The
plaintiffs allege that Harris County's pretrial
misdemeanor bail system violates procedural due process
because: (1) misdemeanor arrestees who cannot pay the
up-front amount for release on secured money bail are
frequently held longer than 24 hours before any meaningful
bail review, contrary to Texas law and to federal court
orders; (2) misdemeanor arrestees are not able even to ask
for a review of their bail in a counseled, adversarial
proceeding, with an opportunity to present evidence and a
right to findings on the record, until at least two or three
days and often up to two weeks after their arrests; (3)
misdemeanor arrestees who cannot afford their secured money
bail are jailed for more than 48 hours if they do not plead
guilty at their first court appearances; and (4) the County
imposes secured money bail to serve as de facto detention
orders, without affording misdemeanor defendants the due
process protections the Constitution requires for detention
orders. (See, e.g., Docket Entry No. 144 at 13-14;
No. 145 at 7-9; No. 188 at 13-15).

The
defendants argue that Harris County's pretrial process is
among the fastest in the nation and that its bail practices
are not out of step with the majority of other United States
jurisdictions. (See, e.g., Docket Entry No. 286).
While insisting that the County's current system is
legal, the defendants acknowledge that it needs improvement.
They argue that the planned reforms will make the
County's pretrial system more efficient, more rational,
and more equal across classifications of wealth and risk
factors. (Docket Entry No. 162 at 23); Hearing Tr. 1:100-01,
8-2:30-32. The plaintiffs respond that until the expected
reforms are implemented, serious constitutional violations
will continue to occur, affecting hundreds of individuals
every day. Even under the reforms, the plaintiffs contend,
Harris County will continue its policy of imposing secured
money bail as de facto pretrial detention orders in violation
of federal due process requirements. (Docket Entry No. 188 at
26-27).

The
court finds and concludes that, based on the credible,
reliable evidence in the present record, the plaintiffs are
likely to succeed on the merits of at least some of their
claims that the present system violates due process and equal
protection, and that the plaintiffs are likely to succeed in
part in their challenges to the new pretrial system as
currently proposed by Harris County. The plaintiffs are
entitled to a preliminary injunction, as set out in detail
below.

C.
The Historical Development of Bail in the United States and
in Harris County

1.
The Constitutionalization of Bail

Bail
originated in medieval England “as a device to free
untried prisoners.” Daniel J. Freed & Patricia M.
Wald, Bail in the United States: 1964 1 (1964);
see 4 William Blackstone, Commentaries on the
Laws of England (Rees Welsh & Co. [1769] 1902)
(“By the ancient common law, before and since the
[Norman] conquest, all felonies were bailable, till murder
was excepted by statute; so that persons might be admitted to
bail before conviction almost in every case.”
(footnotes omitted)); see generally William F.
Duker, The Right to Bail: A Historical Inquiry, 42
Alb. L. Rev. 33, 34-66 (1977); Elsa de Haas, Antiquities
of Bail 128 (1940). In 1275, the English Parliament
enacted the Statute of Westminster, which defined bailable
offenses and provided criteria for determining whether a
particular person should be released, including the strength
of the evidence against the accused and the accused's
criminal history. See Note, Bail: An Ancient
Practice Reexamined, 70 Yale L.J. 966, 966 (1961); June
Carbone, Seeing Through the Emperor's New Clothes:
Rediscovery of Basic Principles in the Administration of
Bail, 34 Syracuse L. Rev. 517, 523-26 (1983). In 1679,
Parliament adopted the Habeas Corpus Act to ensure that an
accused could obtain a timely bail hearing. In 1689,
Parliament enacted an English Bill of Rights that prohibited
excessive bail. See Carbone, supra, at 528.

Early
American constitutions codified a right to bail as a
presumption that defendants should be released pending trial.
See Note, Bail, supra, at 967. One
commentator who surveyed the bail laws in each state found
that forty-eight states have protected, by constitution or
statute, a right to bail “by sufficient sureties,
except for capital offenses when the proof is evident or the
presumption great.” Matthew J. Hegreness,
America's Fundamental and Vanishing Right to
Bail, 55 Ariz. L. Rev. 909, 916 (2013). States modeled
these provisions on the Pennsylvania Constitution of 1682.
See Carbone, supra, at 531-32. Texas
substantially incorporated that language into its
Constitution in 1845, and it remains.[5] Tex. Const. art. 1 §
11.

Texas
law interprets Article I, § 11 to prohibit preventive
pretrial detention except in specific and narrow
circumstances set out in constitutional amendments.
Id. § 11a et seq. “The
exceptions contained in Article I, § 11a, supra, to the
constitutional right to bail proclaimed by Article I, §
11, supra, include the seeds of preventive detention urged by
many to be abhorrent to the American system of justice. It is
obvious that for these reasons the provisions of said §
11a contain strict limitations and other safeguards.”
Ex parte Davis, 574 S.W.2d 166, 169 (Tex. Cr. App.
1978). The exceptions are narrow. All but one are limited to
felonies. The one exception is under §§ 11b and
11c, which permit a denial of bail and pretrial preventive
detention for those accused of a crime of family violence,
including misdemeanors, if: (1) the accused has violated a
condition of pretrial release or a protective order; and (2)
a magistrate determines at an adversary hearing by a
preponderance of the evidence that the accused violated the
condition of release or protective order in a manner
“related to the safety of a victim of the alleged
offense or the safety of the community.” Tex. Const.
art. 1, §§ 11b-11c.

Historians
and jurists confirm that from the medieval period until the
early American republic, a bail bond was typically based on
an individualized assessment of what the arrestee or his
surety could pay to assure appearance and secure release. In
medieval England, an arrestee was forbidden to pay his
sureties for obtaining his release. If an accused failed to
appear, the sureties were “amerced” with a fine,
but there were “maximum amercements depending on the
wrong-doer's rank; the baron [did] not have to pay more
than a hundred pounds, nor the routier more than five
shillings.” 2 Frederick William Polluck & Frederic
William Maitland, The History of English LawBefore the Time of Edward I 514 (2d ed. 1984
[1898]). Joseph Chitty, an eminent proceduralist, summarized
the English practice when the United States Constitution was
ratified: “The rule is, where the offence is prima
facie great, to require good bail; moderation nevertheless is
to be observed, and such bail only is to be required as the
party is able to procure; for otherwise the allowance of bail
would be a mere colour for imprisoning the party on the
charge.” 1 J. Chitty, APractical Treatise
on the Criminal Law 88-89 (Philadelphia ed. 1819);
see also Bates v. Pilling, 149 Eng. Rep. 805, 805
(K.B. 1834) (“a defendant might be subjected to as much
inconvenience by being compelled to put in bail to an
excessive amount, as if he had been actually
arrested”); Rex v. Bowes, 99 Eng. Rep. 1327,
1329 (K.B. 1787) (per curiam) (“[e]xcessive bail is a
relative term; it depends on the nature of the charge for
which bail is required, upon the situation in life of the
parties, and on various other circumstances”) &
(Archbald, J.) (permitting a “lessening” of bail
if there were “difficulty” procuring the decreed
sum); Neal v. Spencer, 88 Eng. Rep. 1305, 1305-06
(K.B. 1698) (collecting cases showing a diversity of bail
amounts given for the same offense). The pre-Texas history of
bail confirms the modern holdings of Texas courts, that bail
is a mechanism for pretrial release and not for continued
pretrial preventive detention.

In the
mid-nineteenth century, bail reform was crucial to abolishing
imprisonment for debt. In Massachusetts, the 1831 survey of
the Prison Discipline Society noted that the availability of
bail in debtors' prisons created class distinctions
between “poor seamen, poor laborers, and poor
mechanics” who could not find sureties and remained in
jail, “while there is scarcely an instance on record of
a poor minister, a poor physician, or a poor lawyer in Prison
for debt.” Sixth Annual Rep. of the Prison Discipline
Society 22 (1831). After Massachusetts abolished imprisonment
for debt in 1855, the State permitted those jailed on
mesne[6] process in contract cases to swear an oath
of indigence and to be released on personal recognizance as
an alternative to secured money bail. 1857 Mass. L. 489-97.
From 1831 to 1833, Congress passed legislation abolishing
imprisonment for debt at the federal level. 4 Stat. 467, 594,
676. Ultimately, forty-one states, including Texas,
constitutionally banned imprisonment for debt.[7]See Tex.
Const. art. 1 § 18.

Another
wave of bail reform began with the 1960s Manhattan Bail
Project, conducted by the Vera Foundation in New York City.
See Wayne H. Thomas, Jr., Bail Reform in
America 3, 20-27 (1976); Ronald Goldfarb,
Ransom 150-72 (1965). The Project interviewed
defendants before their first court appearance to evaluate
whether they were good candidates for pretrial release on
recognizance; that is, release “on one's honor
pending trial.” Goldfarb, supra, at 153-54.
The standard interview questions asked about a
defendant's personal background, community ties, and
criminal history. Id. The interviewer scored a
defendant's answers using a point-weighting system and
verified the answers, usually by telephone, with references
the defendant provided. Id. at 154-55, 174-75. The
interviewers gave the information to the court and
recommended which defendants should be released on
nonfinancial conditions. Id. at 155. During the
first three years of the Project, defendants released on
nonfinancial conditions at the recommendation of the Vera
Foundation were about three times more likely to appear for
trial than were defendants in control groups who were found
eligible for release on nonfinancial conditions but who were
instead released on secured money bail. Id. at 155,
157. The success of the Manhattan Bail Project inspired the
creation of pretrial services programs across the country.
See Timothy R. Schnacke et al., Pretrial
Justice Inst., The History of Bail and Pretrial
Release 10 (2010).

In the
1970s, a major prisoners' class action challenged the
facial and as-applied constitutionality of Florida's
pretrial detention system. The litigation led to two
foundational opinions, one by the United States Supreme Court
and one by the former Fifth Circuit. In Gerstein v.
Pugh, 410 U.S. 103 (1975), the Supreme Court ruled that
criminal defendants arrested without a warrant and then
detained before trial had to be taken “promptly”
before a judicial officer to determine probable cause for the
arrest. 410 U.S. at 127. The Court did not specify what would
meet the promptness standard, instead noting that “the
nature of the probable cause determination usually will be
shaped to accord with a State's pretrial procedure viewed
as a whole. . . . It may be found desirable, for example, to
make the probable cause determination at the suspect's
first appearance before a judicial officer, or the
determination may be incorporated into the procedure for
setting bail or fixing other conditions of pretrial
release.” Id. at 124 (internal citations
omitted).

In
Pugh v. Rainwater, 572 F.2d 1053 (1978) (en banc),
the Fifth Circuit considered the same class's challenge
to Florida's pretrial bail system. The en banc court
vacated as moot the panel decision finding the system
unconstitutional, because Florida had amended its rules while
the appeal was pending. Id. at 1058-59. The en banc
court ruled that the Constitution did not require the statute
to include a presumption that indigent arrestees would be
released without financial conditions to be facially valid.
Id. at 1057-58. But the court noted that while
“[u]tilization of a master bond schedule provides
speedy and convenient release for those who have no
difficulty in meeting its requirements[, t]he incarceration
of those who cannot, without meaningful consideration of
other possible alternatives, infringes on both due process
and equal protection requirements.” Id. at
1057.

In the
decade following Gerstein and Rainwater,
the City of Houston and Harris County were sued in two
lawsuits disputing how to apply those precedents locally. In
Sanders v. City of Houston, 543 F.Supp. 694 (S.D.
Tex. 1982), the court ruled after a bench trial that
Gerstein's promptness standard required a
probable cause hearing for those arrested without a warrant
by the City of Houston within 24 hours of arrest.
Id. at 702. The court also ruled that bail had to be
set within 24 hours of arrest to avoid an unconstitutional
denial of bail under the Texas Constitution.[8]Id. at
704.

In
Roberson v. Richardson, Agreed Final Judgment, Civil
No. 84-2974 (S.D. Tex. Nov. 25, 1987), the court entered a
final agreed judgment that applied the 24-hour time limit to
misdemeanor cases throughout the County.[9] The
Roberson order's stated purpose was to ensure
that misdemeanor arrestees in Harris County had “the
right to a prompt, fair and reliable determination of
Probable Cause as set out in Gerstein v. Pugh, 420
U.S. 103 (1978), a meaningful review of alternatives to
pre-scheduled bail amounts as set out in Rainwater v.
Pugh, 572 F.2d 1053 (5th Cir. 1978) (en banc),
and the right to the prompt appointment of counsel.”
Id. at 1. The Roberson order required the
County Criminal Courts at Law Judges to provide probable
cause hearings within 24 hours of misdemeanor arrests,
allowing the hearings to be by videolink rather than in
person. Id. at 2 (videolink), 3 (24 hours).

The
Roberson order required judicial officers at the
probable cause hearing to “set the amount of bail
required of the accused for release and determine the
accused's eligibility for release on personal bond or
alternatives to prescheduled bail amounts.”
Id. at 3. Substantially repeating Article 17.15 of
the Texas Code of Criminal Procedure, Section D of the
Roberson order stated:

Such
bail determinations shall be according to the following
criteria:

1. The bail shall be sufficiently high to give reasonable
assurance that the undertaking will be complied with;

2. The nature of the offense for which Probable Cause has
been found and the circumstances under which the offense was
allegedly committed are to be considered, including both
aggravating and mitigating factors for which there is
reasonable ground to believe shown, if any;

3. The ability to make bail is to be regarded, and proof may
be taken upon this point;

4. The future safety of the victim may be considered, and if
this be a factor, release to a third person should also be
considered; and

The
Roberson order required the County Judges to
“implement and maintain a bond schedule for all
misdemeanor offenses within their jurisdiction.”
Id. at 4. The schedule had to “establish the
initial amounts of bail required in each type or category of
offense.” Id. The Roberson order
required that:

At the Probable Cause hearing the [Hearing] Officer shall use
the Bail Schedule, in addition to the criteria in Section D,
in determining the appropriate bail in a given case. The
[Hearing] Officer shall have the authority to order the
accused released on personal bond or released on other
alternatives to prescheduled bail amounts. The [County]
Judges shall direct the Pretrial Services Agency to make
every effort to insure that sufficient information is
available at the time of the hearings required herein for the
[Hearing] Officer to determine an accused's eligibility
for a personal bond or alternatives to prescheduled bail
amounts.

Id.

Nothing
in the Roberson order contemplated detention based
on a misdemeanor arrestee's inability to pay the
scheduled bail amount set on a secured basis. Rather, the
order required Hearing Officers to make individualized
adjustments to the bail schedule in each case to provide a
mechanism for release, either by lowering the scheduled
amount when setting a secured bond; setting nonfinancial
conditions of release; or granting release on unsecured
“personal bonds” without additional conditions.
See id. at 4, 1 (the purpose of the order is to
provide “a meaningful review of alternatives
to pre-scheduled bail amounts” (emphasis added)).

Finally,
the Roberson order required the County Judges to
appoint counsel “prior to any adversarial judicial
proceedings” or “where the Judge concludes that
the interests of justice require representation, for all
accused indigents who do not refuse the appointment of
counsel.” Id. at 4. In determining indigency
for the purpose of appointing counsel, the Roberson
order required the County Judges to consider the
accused's income and expenses, assets and debts,
dependents, and “whether the accused has posted or is
capable of posting bail.” Id. In no case could
a County Judge “deny appointed counsel to an accused
solely because the accused has posted, or is capable of
posting bail.” Id.

Efforts
to comply with the Roberson order have produced the
system Harris County has in place today, examined in greater
detail below.[10] (Docket Entry No. 101 at 11); Hearing
Tr. 4-2:222-29; 5:6-20. Harris County operates a Pretrial
Services Agency that interviews misdemeanor arrestees to
provide criminal risk and financial background information to
the Hearing Officers. The Hearing Officers hold videolink
hearings for those arrested, charged, and booked into the
Harris County Jail on misdemeanor charges.[11] These
hearings usually, but far from always, are held within 24
hours of arrest. The Hearing Officers usually jointly
determine probable cause and set bail.

3.
Bail at the Federal Level

At the
federal level, the Judiciary Act of 1789 provided an absolute
right to bail in noncapital cases and bail at the judge's
discretion in capital cases. See 1 Stat. 73, 91. The
first Congress also proposed the Eighth Amendment to the
United States Constitution, which, like the Texas
Constitution and the English Bill of Rights, prohibits
excessive bail. See U.S. Const. amend. VIII; Tex.
Const. art. 1, § 13. But unlike the Texas Constitution,
the United States Constitution does not explicitly state a
right to bail. The Eighth Amendment guarantees only that
“[e]xcessive bail shall not be required.” U.S.
Const. amend. VIII; see Carlson v. Landon, 342 U.S.
524, 545-46, (1952) (the Eighth Amendment does not provide a
“right to bail”). But the United States Supreme
Court has made clear that “[b]ail set at a figure
higher than an amount reasonably calculated to fulfill
[the]purpose [of assuring the defendant's appearance at
trial] is ‘excessive' under the Eighth
Amendment.” Stack v. Boyle, 342 U.S. 1, 5
(1951). As the Court explained,

From the passage of the Judiciary Act of 1789, 1 Stat. 73,
91, to the present Federal Rules of Criminal Procedure, Rule
46(a)(1), 18 U.S.C.A., federal law has unequivocally provided
that a person arrested for a noncapital offense shall be
admitted to bail. This traditional right to freedom before
conviction permits the unhampered preparation of a defense,
and serves to prevent the infliction of punishment prior to
conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285 . .
. . Unless this right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of
struggle, would lose its meaning.

Id. at 4; see also Bandy v. United States,
81 S.Ct. 197, 198 (1960) (Douglas, J., in chambers)
(“It would be unconstitutional to fix excessive bail to
assure that a defendant will not gain his freedom. Yet in the
case of an indigent defendant, the fixing of bail in even a
modest amount may have the practical effect of denying him
release.” (citing Stack, 342 U.S. at 1));
United States v. Leathers, 412 F.2d 169, 171 (D.C.
Cir. 1969) (“the setting of bond unreachable because of
its amount would be tantamount to setting no conditions at
all”).

The
Bail Reform Act of 1966 became “the first major reform
of the federal bail system since the Judiciary Act of
1789.” State v. Brown, 338 P.3d 1276, 1286
(N.M. 2014); see Bail Reform Act of 1966, 80 Stat.
214 (repealed 1984). The stated purpose of the Bail Reform
Act of 1966 was “to assure that all persons, regardless
of their financial status, shall not needlessly be detained
pending their appearance to answer charges . . . when
detention serves neither the ends of justice nor the public
interest.” Id. § 2. The Act required: (1)
a presumption of release on personal recognizance unless the
court determined that release would not reasonably assure the
defendant's appearance in court; (2) the option of
conditional pretrial release under supervision or other terms
designed to decrease the flight risk; and (3) a prohibition
on using money bail when nonfinancial release options such as
supervisory custody or restrictions on “travel . . . or
place of abode” could reasonably assure the
defendant's appearance. See Id. § 3, §
3146(a).

Congress
again revised federal bail procedures with the Bail Reform
Act of 1984, enacted as part of the Comprehensive Crime
Control Act of 1984. See Bail Reform Act of 1984, 98
Stat. 1837, 1976 (codified at 18 U.S.C. §§
3141-3150 (2012)). The legislative history of the 1984 Act
states that Congress wanted to “address the alarming
problem of crimes committed by persons on release” and
to “give the courts adequate authority to make release
decisions that give appropriate recognition to the danger a
person may pose to others if released.” S. Rep. 98-225,
at 3 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3185. The 1984 Act, as amended, retains most of the 1966 Act
but “allows a federal court to detain an arrestee
pending trial if the Government demonstrates by clear and
convincing evidence after an adversary hearing that no
release conditions ‘will reasonably assure . . . the
safety of any other person and the community.'”
United States v. Salerno, 481 U.S. 739, 741 (1987)
(omission in original) (quoting the Bail Reform Act of 1984)
(upholding the preventive detention provisions in the 1984
Act).

The
federal history of bail reform confirms that bail is a
mechanism of pretrial release, not of preventive detention.
Pretrial preventive detention in federal cases requires
counseled, adversarial hearings with findings stated on the
record that, by clear and convincing evidence, no less
restrictive alternative can reasonably assure the
defendant's presence at trial. See id. In
United States v. McConnell, 842 F.2d 105 (5th Cir.
1988), the Fifth Circuit held that “a bail setting is
not constitutionally excessive merely because a defendant is
financially unable to satisfy the requirement.”
Id. at 107. The magistrate judge in
McConnell had initially ordered the felony defendant
detained before trial with no release condition under the
provision of the Bail Reform Act recently upheld in
Salerno. See id. at 106. The district court
replaced the detention order with a set of conditions for
release, including weekly check-ins with pretrial services,
travel restrictions, and secured money bail of $750, 000.
Id. The defendant moved for reconsideration,
alleging that he did not have the assets to pay the secured
money bail. The defendant appealed the district court's
denial of his motion for reconsideration, and the Fifth
Circuit remanded to the district court for a written opinion
with findings on the record. Id. The court issued
written findings, and a second appeal followed. Id.

The
Fifth Circuit recognized that under the Bail Reform Act,
Congress “proscrib[ed] the setting of a high bail as a
de facto automatic detention practice.”
Id. at 109. The Fifth Circuit relied on the Senate
Report of the Bail Reform Act, which explained that:

section 3142(c) provides that a judicial officer may not
impose a financial condition of release that results in the
pretrial detention of the defendant. The purpose of this
provision is to preclude the sub rosa use of money bond to
detain dangerous defendants. However, its application does
not necessarily require the release of a person who says he
is unable to meet a financial condition of release which the
judge has determined is the only form of conditional release
that will assure the person's future appearance. Thus,
for example, if a judicial officer determines that a $50, 000
bond is the only means, short of detention, of assuring the
appearance of a defendant who poses a serious risk of flight,
and the defendant asserts that, despite the judicial
officer's finding to the contrary, he cannot meet the
bond, the judicial officer may reconsider the amount of the
bond. If he still concludes that the initial amount is
reasonable and necessary then it would appear that there is
no available condition of release that will assure the
defendant's appearance. This is the very finding which,
under section 3142(e), is the basis for an order of
detention, and therefore the judge may proceed with a
detention hearing pursuant to section 3142(f) and order the
defendant detained, if appropriate. The reasons for the
judicial officer's conclusion that the bond was the only
condition that could reasonably assure the appearance of the
defendant, the judicial officer's finding that the amount
of the bond was reasonable, and the fact that the defendant
stated that he was unable to meet this condition, would be
set out in the detention order as provided in section
3142(i)(1). The defendant could then appeal the resulting
detention pursuant to section 3145.

Id. at 108-09 (quoting S.Rep. No. 225, 98th Cong.2d
Sess. 16, reprinted in 1984 U.S.C.C.A.N. 3182,
3199). The Fifth Circuit concluded that the district court
could set a secured money bail amount beyond the
defendant's ability to pay, but “[i]n such an
instance, the court must explain its reasons for concluding
that the particular financial requirement is a necessary part
of the conditions for release. It is sufficient for the court
to find by a preponderance of evidence that the defendant
poses a serious risk of flight.” Id. at 110.
When federal bail functions as an order of detention because
of the defendant's inability to pay, the court must treat
the bail as an order of detention under § 3142(e) and
must provide the procedural protections that section
requires, with a preponderance-of-the-evidence standard.
See also United States v. Mantecon-Zayas, 949 F.2d
548, 550 (1st Cir. 1991) (“once a court finds itself in
this situation-insisting on terms in a ‘release'
order that will cause the defendant to be detained pending
trial-it must satisfy the procedural requirements for a valid
detention order”).

4.
Bail under Texas Law

The
Texas state appellate court practice is similar to federal
court practice. Texas courts have imposed or confirmed high
money bail after a judicial officer holds an adversarial
hearing, with defense counsel present, and issues a reasoned
opinion with written findings permitting secured money bail
despite inability to pay in felony cases in which pretrial
preventive detention without bail is available under Article
I, § 11 of the Texas Constitution. See, e.g.,
Jobe v. State, 482 S.W.3d 300 (Tex. App.-Eastland
2016) (charge of capital murder); Ex parte Ragston,
422 S.W.3d 904 (Tex. App.-Houston [14th Dist.] 2014, no pet.)
(capital murder, first-degree murder, and aggravated
robbery); Ex parte Vasquez, 558 S.W.2d 477 (Tex. Cr.
App. 1977) (capital murder). In cases in which preventive
detention is not available, Texas appellate courts have
confirmed high money bail in felony cases when the evidence
did not show the defendant's inability to pay. See,
e.g., Ex parte Dupuy, 498 S.W.3d 220, 233 (Tex.
App.-Houston [14th Dist.] 2016, no pet.) (“Appellant
offered no evidence, and we see none in the record,
suggesting the trial court set his bail at $200, 000 for each
case in order to keep him incarcerated.”); Cooley
v. State, 232 S.W.3d 228, 235 (Tex. App.-Houston [1st
Dist.] 2007) (“Cooley owns half of a multi-million
dollar air freight business and did not introduce evidence
that revenues from it were unavailable to him.”);
Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Cr.
App. 1980) (evidence showed the defendants “live in a
style inconsistent with poverty”); Ex parte
Welch, 729 S.W.2d 306, 310 (Tex. App.-Dallas 1987, no
pet.) (incomplete and conflicting evidence on ability to pay
in a case charging solicitation of capital murder committed
while the defendant was already on pretrial release on a
secured money bail).

In a
narrow set of felony cases, Texas courts have imposed or
confirmed high money bail despite evidence of inability to
pay the amount needed for pretrial release. “When the
offense is serious and involves aggravating factors that may
result in a lengthy prison sentence, ” a higher money
bail than the defendant can pay is permissible, but only
after satisfying the same due process requirements as an
actual detention order. Dupuy, 498 S.W.3d at 230;
see, e.g., Maldonado v. State, 999 S.W.2d
91 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd)
(charges of possessing cocaine with a street value of $11-72
million with a possible sentence of 99 years); Ex parte
Miller, 631 S.W.825 (Tex. App.-Ft. Worth 1982) (charges
of murder and rape carrying life sentence); Ex parte
Runo, 535 S.W.2d 188 (Tex. Cr. App. 1976) (bail set at
$125, 000 on a charge carrying a life sentence was not
excessive, but bail set at $75, 000 on a charge carrying a
minimum two-year sentence was excessive and had to be reduced
to $5, 000). Even so, Texas courts are careful to distinguish
between transparent pretrial preventive detention orders and
de facto pretrial detention orders imposed by setting bail
higher than the defendant can pay. See, e.g.,
Dupuy, 498 S.W.3d at 230; Ex parte Harris,
733 S.W.2d 712, 714 (Tex. App.-Austin 1987, no pet.) (setting
bail “on the obvious assumption that appellant could
not afford bail in that amount and for the express purpose of
forcing [the defendant] to remain incarcerated” was
overturned for abuse of discretion); Ex parte
Nimnicht, 467 S.W.3d 64, 70 (Tex. App.-San Antonio 2015)
(“There is no evidence the trial court set bail with
the intent to prolong Nimnicht's incarceration,
especially in light of the fact the trial court reduced the
bail amount.”).[12]

The
defendants argue that, while Texas law forbids setting bail
higher than a defendant can pay in order to impose a de facto
pretrial detention order, if a judicial officer weighs all
five factors of Article 17.15 of the Texas Code of Criminal
Procedure and then imposes a bail amount that an indigent
arrestee cannot pay, the bail is not a de facto detention
order. (See, e.g., Docket Entry No. 164 at 8-10, 18;
No. 263 at 3-4; No. 266 at 7-8). The defendants overstate the
Article 17.15 factors and their role. The Texas cases make
clear that a judge may arrive at a bail amount that a
defendant cannot pay when the defendant is facing a felony
charge carrying an extended prison sentence. Even then, the
bail setting requires an adversarial, counseled hearing at
which the defendant can put on evidence of indigence and
likelihood of compliance with nonfinancial conditions of
release, and reviewable findings, stated on the record, that
the secured financial condition is reasonably necessary to
assure the defendant's appearance at trial or law-abiding
conduct.[13] In misdemeanor cases, pretrial
preventive detention is permitted only when a defendant is
facing a family violence charge after previously violating a
release condition in an earlier family violence case. In
those cases, it is not necessary to use secured money bail to
effect the detention of those who cannot pay. The Texas
Constitution permits a transparent order of pretrial
preventive detention.

5.
Recent Distinctions Drawn Between Bail and Preventive
Detention

a.Washington,
D.C.

In
1994, Washington, D.C. amended its Code using language
substantially similar to the federal Bail Reform Act. The
amended Code permits a judicial officer to set “a
financial condition to reasonably assure the defendant's
presence at all court proceedings that does not result in the
preventive detention of the person, except as provided
in” the Code's regulations of preventive pretrial
detention orders. D.C. Code § 23-1321(c)(3). The Code
permits preventive detention only in cases involving a charge
of violent or dangerous crime, as well as in cases presenting
a “serious risk that the person will flee.”
Id. § 23-1322(b)(1). To order preventive
detention, a judge must: hold a hearing at the first
appearance of the defendant before a judicial officer;
appoint counsel for the defendant; permit the defendant to
put on evidence, testify, and call witnesses; and make
written findings “by clear and convincing evidence that
no condition or combination of conditions will reasonably
assure the appearance of the person as required, and the
safety of any other person and the community.”
Id. § 23-1322(b)(2)-(d)(7).

Judge
Truman Morrison of the D.C. Superior Court credibly testified
at the motion hearing that until the 1994 amendment, the D.C.
courts did not order preventive detention outright. The
statutory prohibition on using secured money bail to assure
community safety was also “a dead letter.”
Hearing Tr. 2-2:137. “So in cases of any seriousness,
judges made an effort nontransparently, never saying what
they were doing out loud, to immobilize high-risk people-who
they thought were high-risk people-with money bonds that they
hoped would be beyond their reach.” Id. Judge
Morrison testified that after the 1994 rule change,
“[f]or the high-risk people that we used to immobilize
nontransparently, we turned to this preventive detention
statute that was moldering on the bookshelf, and prosecutors
and judges began using that for high-risk people.”
Id. at 2-2:139. For “somewhat serious
misdemeanors who we had been keeping in the jail on lower
levels of money bond, ” judges began to order
alternative nonfinancial conditions of release with
supervision provided by D.C.'s pretrial services agency.
Id. at 2-2:139-40. Based on a recent report by that
agency, Judge Morrison testified that although secured money
bail is still available under the D.C. Code, such bail is
almost never imposed in misdemeanor cases. Transparent
preventive detention orders are issued in only about 1.5
percent of misdemeanor cases, and then only after counseled,
adversary hearings with findings on the record that there are
no less restrictive conditions that will assure the
defendant's presence at trial or the safety of the
community.[14]Id. at 2-2:149, 154; D.C. Code
§ 23-1322(b)(2)-(d)(7).

b.
New Mexico

In
2014, the New Mexico Supreme Court ruled that
“[n]either the New Mexico Constitution nor our rules of
criminal procedure permit a judge to set high bail for the
purpose of preventing a defendant's pretrial
release.” Brown, 338 P.3d at 1292 (citing N.M.
Const. art. II, § 13-substantially the same language as
Tex. Const. art. I, § 11). The court explained that
“[i]ntentionally setting bail so high as to be
unattainable is simply a less honest method of unlawfully
denying bail altogether.” Id. The supreme
court held that the trial court had abused its discretion by
requiring secured money bail “solely on the basis of an
accusation of a serious crime” and had failed to apply
the New Mexico Code of Criminal Procedure requirement that
trial courts impose the least restrictive bail and release
conditions to reasonably assure a defendant's appearance
and the public's safety. Id. at 1291-92.

In
2016, New Mexico voters codified the holding of State v.
Brown in a constitutional amendment that passed with
87.2 percent of the vote.[15] The amendment provided that
“[b]ail may be denied by a court of record pending
trial for a defendant charged with a felony if the
prosecuting authority requests a hearing and proves by clear
and convincing evidence that no release conditions will
reasonably protect the safety of any other person or the
community. An appeal from an order denying bail shall be
given preference over all other matters.”
Constitutional Amendment 1, New Mexico Senate Joint
Resolution 1, March 1, 2016.[16] The amendment also required
that “[a] person who is not detainable on grounds of
dangerousness nor a flight risk in the absence of bond and is
otherwise eligible for bail shall not be detained solely
because of financial inability to post a money or property
bond.” Id. Under the amendment, courts cannot
order preventive detention for misdemeanor arrestees or
accomplish the same effect by setting a secured money bail
that an indigent defendant cannot pay.

c.
New Jersey

New
Jersey recently amended its constitution and statutes to
enact statewide bail reforms. The changes went into effect on
January 1, 2017. The New Jersey Constitution now provides
that “[p]retrial release may be denied to a person if
the court finds that no amount of monetary bail, non-monetary
conditions of pretrial release, or combination of monetary
bail and non-monetary conditions would reasonably assure the
person's appearance in court when required, or protect
the safety of any other person or the community, or prevent
the person from obstructing or attempting to obstruct the
criminal justice process.” N.J. Const. art. 1, §
11.

In a
detailed law-enforcement directive, the New Jersey Attorney
General concluded that under New Jersey's prior practice,
“in most cases the critical determination whether a
defendant [was] released pending trial or instead
incarcerated in a county jail [was] not made by a judge
issuing a well-reasoned court order. Rather, for all
practical purposes, defendants [were] released or detained
based on whether they happen[ed] to have the financial means
to post bail.” N.J. Attorney General Law Enforcement
Directive No. 2016-6 at 9. New Jersey changed. Its current
system creates a presumption against the use of secured money
bail unless the prosecutor can show that “no
non-monetary release condition or combination of conditions
would be sufficient to reasonably assure the defendant's
appearance in court when required”; “the
defendant is reasonably believed to have financial assets
that will allow him or her to post monetary bail in the
amount requested by the prosecutor without having to purchase
a bond from a surety company or to obtain a loan”; and
“imposition of monetary bail set at the amount
requested would . . . make it unnecessary for the prosecutor
to seek pretrial detention.” Id. at 56.
Secured money bail cannot be used to achieve or to have the
effect of a pretrial detention order. Out of 3, 382 cases
filed in the first month under the new law, judges imposed
transparent orders of pretrial detention in 283 cases and
denied pretrial detention when requested to do so in 223
cases. Secured money bail was set in only 3 cases. Pls. Ex.
7(k) at 1.

New
Jersey does not distinguish between felony and misdemeanor
cases but between numbered “categories” of
offenses, making comparisons to the Texas misdemeanor bail
system difficult. The New Jersey numbers are for all case
categories. Id. Because this approach clearly
applies to more serious felony-level cases, the basis for
applying it to misdemeanor cases is even stronger.

d.
New Orleans

On
January 12, 2017, the Council of the City of New Orleans,
where the municipal courts have jurisdiction only over
misdemeanor cases, passed a measure reforming its bail
ordinance. Pls. Ex. 12(tt). The preamble states that
“incarcerating people solely due to their inability to
pay for their release through the payment of cash bond
violates the Equal Protection Clause of the Fourteenth
Amendment.” Id. at 1 (citing Barnett v.
Hopper, 548 F.2d 550, 554 (5th Cir. 1977). The new
ordinance requires that except for four enumerated
offenses-battery, possession of weapons, impersonating a
peace officer, and domestic violence-all misdemeanor
arrestees are to be released on personal recognizance.
Id. at 2-3. For those charged with one of the
enumerated offenses, the municipal courts must “impose
the least restrictive non-financial release
conditions.” Id. at 3. “For any person
who qualifies for indigent defense, or does not have the
present ability to pay, the Court may not set” any
financial condition of release or a nonfinancial condition of
release “that requires fees or costs to be paid by the
defendant.” Id. Other than the four specific
exceptions for offenses that involve violence or other public
safety threats, all defendants must be released with no
financial conditions. If a financial condition is imposed,
the defendant must have “the present ability to pay the
amount set.” Id.

e.
Maryland

On
February 17, 2017, the Maryland Court of Appeals adopted
detailed changes to its court rules, the main source of
criminal procedural law in Maryland. The rule changes will
take effect on July 1, 2017. Pls. Ex. 12(p)(i), Court of
Appeals of Maryland, Rules Order, Feb. 17, 2017 at 3. The
rule changes are “designed to promote the release of
defendants on their own recognizance or, when necessary,
unsecured bond” by establishing a
“[p]reference” for “additional conditions
[of release] without financial terms.” Id. at
33. All defendants-both felony and misdemeanor-must be
released on personal recognizance or unsecured bond unless a
judicial officer makes written findings on the record
“that no permissible non-financial condition attached
to a release will reasonably ensure (A) the appearance of the
defendant, and (B) the safety of each alleged victim, other
persons, or the community.” Id. at 35. Even in
those circumstances, the new rules require that “[a]
judicial officer may not impose a special condition of
release with financial terms in form or amount that results
in the pretrial detention of the defendant solely because the
defendant is financially incapable of meeting that
condition.” Id. at 39. Pretrial detention must
not be the intended use or the incidental effect of secured
money bail.

Before
the rule change, the Maryland Attorney General wrote to the
rules committee chairman that “[a]lthough Maryland law
permits unconditional pretrial detention only where no
conditions of release will reasonably protect the public or
ensure the defendant's appearance at trial, nearly every
evaluation of Maryland's pretrial system has found no
relationship between a pretrial detainee's perceived risk
and the bond amount set. . . . Lower risk defendants are
detained because they cannot afford the bail, while higher
risk defendants who have access to financial resources are
able to make bail and are often permitted to do so without
imposition of other conditions to protect the public.”
Pls. Ex. 12(p) at 3 (citing reports). An advisory memo from
the then United States Attorney General stated that
“[a]s a general proposition, Maryland's judicial
officials . . . do not properly and consistently consider
defendants' individual circumstances, and particularly
their financial resources, in making bail determinations. As
a result, arrestees in Maryland habitually face extended
periods of pretrial detention not as a result of their
dangerousness to the community or because they pose a
substantial risk of flight, but solely because they are
unable to pay bail.” Pls. Ex. 12(p)(ii) at 7. The memo
concluded that this system, and those like it, violated both
state law and the federal Constitution. Id. at 4-11.

f.
Alabama

Some of
the same lawyers representing the plaintiffs in this case
have brought similar actions challenging bail systems around
the country. Several actions were resolved with an agreed
final judgment. These judgments typically state that
“[i]f the government offers release from custody after
arrest upon the deposit of money pursuant to a bail schedule,
it cannot deny release from custody to a person, without a
hearing regarding the person's indigence and the
sufficiency of the bail setting, because the person is unable
to deposit the amount specified by the schedule.”
Jones v. City of Clanton, Alabama, Civil No. 15-34,
2015 WL 5387219 at *4 (M.D. Ala. Sep. 14, 2015) (citing
Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978);
Bearden v. Georgia, 461 U.S. 660 (1983);
Statev. Blake, 642 So.2d 959 (Ala. 1994));
see also Jenkins v. City of Jennings, Civil No.
15-252 (E.D. Mo. Dec. 14, 2016); Bell v. City of
Jackson, Civil No. 15-252 (E.D. Mo. June 20, 2016);
Thompson v. Moss Point, Civil No. 15-182 (S.D.Miss.
Nov. 6, 2015); Snow v. Lambert, Civil No. 15-567
(M.D. La. Aug. 27, 2015); Cooper v. City of Dothan,
Civil No. 15-425 (M.D. Ala. June 18, 2015); Pierce v.
City of Velda, Civil No. 15-570 (E.D. Mo. June 3, 2015).
In Jones, the court independently confirmed the need
for relief, reasoning that “[b]ail schemes such as the
one formerly enforced in the municipal court result in the
unnecessary pretrial detention of people whom our system of
justice presumes to be innocent, ” and that
“[c]riminal defendants, presumed innocent, must not be
confined in jail merely because they are poor.”
Jones, 2015 WL 5387219 at *3.

The
U.S. Department of Justice filed a statement of interest in
Jones, stating that “[i]ncarcerating
individuals solely because of their inability to pay for
their release, whether through the payment of fines, fees, or
a cash bond, violates the Equal Protection Clause of the
Fourteenth Amendment.”[17]See Varden v. City of
Clanton, Alabama, Civil No. 15-34, Docket Entry No. 26
at 1 (M.D. Ala. Feb. 13, 2015). The Justice Department
reasoned that because rigidly adhering to a secured money
bail schedule “do[es] not account for individual
circumstances of the accused, [it] essentially mandate[s]
pretrial detention for anyone who is too poor to pay the
predetermined fee. This amounts to mandating pretrial
detention only for the indigent.” Id. at 9.
After Jones, fifty of Alabama's largest cities,
accounting for 40 percent of the population, voluntarily
reformed their bail systems to either release misdemeanor
defendants on personal recognizance or, at a minimum, to set
an early hearing to consider alternative methods of release
to secured money bail. Pls. Ex. 12(1).

g.
Calhoun, Georgia

Some of
the plaintiffs' counsel also represented the plaintiffs
in Walker v. City of Calhoun, Georgia, Civil No.
15-170, 2016 WL 361612 (N.D.Ga. Jan. 28, 2016). A putative
class of misdemeanor arrestees alleged that Calhoun detained
them on prescheduled amounts of secured money bail that were
not reviewed except at court sessions held each Monday.
Id. at *1. The trial court granted the
plaintiffs' motion for a preliminary injunction, finding
that “keeping individuals in jail solely because they
cannot pay for their release, whether via fines, fees, or a
cash bond, is impermissible.” Id. at *10
(citations omitted). The court ordered Calhoun to
“implement postarrest procedures that comply with the
Constitution, ” and directed that “until
Defendant implements lawful postarrest procedures, Defendant
must release any other misdemeanor arrestees in its custody,
or who come into its custody, on their own recognizance or on
unsecured bond in a manner otherwise consistent with state
and federal law and with standard booking procedures.”
Id. at *14. The Eleventh Circuit vacated the
injunction because requiring the defendant to implement
constitutional procedures was “the archetypical and
unenforceable ‘obey the law' injunction”
forbidden by Federal Rule of Civil Procedure 65. Walker
v. City of Calhoun, Georgia, - F.App'x -, 2017 WL
929750 at *2 (11th Cir. Mar. 9, 2017). The panel did not
consider the merits, instead remanding for the district court
to enter a specific order consistent with Rule 65. See
id.

Walker
attracted significant attention. Ten amicus briefs were
filed, including by the American Bar Association, the U.S.
Department of Justice, the Pretrial Justice Institute and
National Association of Pretrial Services Agencies, the Cato
Institute, and various representatives of bail bonds
associations, Georgia law-enforcement personnel, and other
municipalities and their insurers. The relevant amicus briefs
are included in the record here.

The
American Bar Association's amicus brief in
Walker argued that “[m]onetary conditions of
release should never be drawn from an inflexible schedule,
should be imposed only after consideration of the
defendant's individual circumstances, and should never
prevent the defendant's release solely because the
defendant is unable to pay.” Pls. Ex. 12(ff) at 12. The
Third Edition of the ABA Standards for Criminal Justice,
Pretrial Release (3d ed. 2007), recommend
“procedures designed to promote the release of
defendants on their own recognizance or, when necessary,
unsecured bond.” Standard 10-1.4(a). Jurisdictions
should impose financial conditions only “when no other
conditions will ensure appearance, ” and financial
conditions “should not be employed to respond to
concerns for public safety.” Standard 10-1. (4c)-(d).
The Standards also emphasize that “[t]he
judicial officer should not impose a financial condition of
release that results in the pretrial detention of a defendant
solely due to the defendant's inability to pay.”
Standard 10-1.4(e).

The
American Bar Association's brief emphasizes that
“[u]nwarranted pretrial detention infringes on
defendants' constitutional rights, ‘making it
difficult for the defendant to consult with counsel, locate
witnesses, and gather evidence' and placing a
particularly heavy burden on ‘poor defendants and on
racial and cultural minorities.'” Pls. Ex. 12(ff)
at 14 (quoting Standards at 32-33). The commentary
to the Standards states that “[i]f the court
finds that unsecured bond is not sufficient, it may require
the defendant to post bail; however, the bail amount must
be within the reach of the defendant and should not be
at an amount greater than necessary to assure the
defendant's appearance in court.” Id.
(quoting with emphasis Standards at 43-44). The
brief concludes that detaining a defendant solely for failure
to pay a secured financial condition of release is
unwarranted and unconstitutional. Id.

The
Justice Department's brief expanded the statement of
interest it submitted in the Jones Alabama bail
case. The brief reasoned that, based on Supreme Court
precedent, “[i]f a court finds that no other conditions
may reasonably assure an individual's appearance at
trial, financial conditions may be constitutionally
imposed-but ‘bail must be set by a court at a sum
designed to ensure that goal, and no
more.'” Pls. Ex. 12(dd) at 18 (quoting with
emphasis Salerno, 481 U.S. at 754). “Although
the imposition of bail in such circumstances may result in a
person's incarceration, ” the Department explained,
“the deprivation of liberty in such circumstances is
not based solely on inability to pay.”
Id. But adhering to “fixed bail schedules that
allow for the pretrial release of only those who can pay,
without accounting for ability to pay and alternative methods
of assuring future appearance, do not provide for such
individualized determinations, and therefore unlawfully
discriminate based on indigence.” Id.

The
Justice Department's argument is stated less strongly
than the American Bar Association's. While the American
Bar Association argues that defendants must not be detained
solely because of their inability to pay secured money bail,
the Justice Department interprets “solely” to
exclude those who cannot pay a secured money bail because it
has been set beyond their reach due to their risk of flight.
See id. Both arguments are consistent with the
reforms surveyed above. Some jurisdictions, such as
Washington, D.C., New Mexico, New Jersey, and New Orleans, do
not permit secured money bail settings to result in pretrial
detention or operate as de facto pretrial preventive
detention orders in misdemeanor cases, in line with the
American Bar Association's recommendations. Others, such
as Maryland and Alabama, permit secured money bail to have
the effect of detention only if the court follows the
procedures required for pretrial preventive detention, in
line with the Justice Department's argument. In those
cases, a judicial officer must make written findings after an
adversarial, counseled hearing that secured money bail in the
amount set is the only, or the least restrictive, condition
that can reasonably assure the defendant's appearance at
trial.

The
Pretrial Justice Institute and the National Association of
Pretrial Services Agencies submitted a brief in
Walker using empirical data to argue that secured
money bail, as opposed to an unsecured appearance bond, is
never the only reasonable condition that will assure an
individual's appearance at trial or community safety.
Pls. Ex. 12(hh). The brief presented data showing that those
released on secured money bail do not appear at greater rates
or commit new crimes at lower rates than those released on
unsecured bonds. Id. Secured money bail schedules
can effectively increase rates of appearance when they
operate as detention orders, but “the use of such
schedules inevitably leads to the detention of some persons
who pose little threat to public safety, but are too poor to
afford release, while releasing others that pose a higher
safety risk (but can afford to post bond).”
Id. at 25.

h.
Conclusion

In
addition to the policy changes that a number of jurisdictions
have already implemented or are in the process of
implementing, even more jurisdictions have announced that
they are examining or are about to reform their bail
systems.[18] A common theme among these reformed and
reforming jurisdictions is that, before recent rule changes,
each jurisdiction as a matter of routine practice either
intentionally used or indifferently permitted the use of
secured money bail as de facto detention orders against those
financially unable to pay. See, e.g.,
Brown, 338 P.3d at 1292 (“We understand that
this case may not be an isolated instance and that other
judges may be imposing bonds based solely on the nature of
the charged offense without regard to individual
determinations of flight risk or continued danger to the
community.”); Pls. Ex. 12(p); Hearing Tr. 2-2:137. The
other theme is that this practice did not hold up to
historical, empirical, political, or legal scrutiny. Whether
by legislative enactment, judicial rulemaking, or court
order, there is a clear and growing movement against using
secured money bail to achieve a misdemeanor arrestee's
continued detention. Of course, it is not a federal
court's role in any way to make policy judgments.
See, e.g., Brown v. Plata, 563 U.S. 493 at
537-38 (2011). The question this case presents is not what is
the best or even a good bail policy. The question is what
bail system the Constitution requires and what system it
prohibits. The Constitution sets minimum standards of due
process and protects basic rights such as the presumption of
innocence and the ability to prepare for trial. State and
local governments may add to, but may not detract from, these
basic protections. See, e.g., Gerstein, 420
U.S. at 124. The question is whether Harris County meets the
constitutionally minimum standards and procedures.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;D.
The Use of Bail in Harris County Misdemeanor ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.